Republic of the Philippines The appellant contends that, having surprised his wife, in the
SUPREME COURT afternoon of the date in question, under circumstances indicative
Manila
EN BANC
G.R. No. 46310 October 31, 1939
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MARCIANO GONZALES, defendant-appellant.
Eduvigio E. Antona for appellant.
Office of the Solicitor-General Ozaeta and Assistant Attorney
Zulueta for appellee.
CONCEPCION, J.:
Marciano Gonzales appealed from the judgment of the Court of
First Instance of Tayabas which found him guilty of parricied and
sentenced him to reclusion perpetua with the accessories of the
law, to indemnify the heirs of the deceased, Sixta Quilason, in the
amount of P1,000, and to pay the costs.
At the trial, the appellant testified that at midday on June 2, 1938,
on returning to his house from the woods, he surprised his wife,
Sixta Quilason, and Isabelo Evangelio in the act, told her that the
man was the very one who used to ask rice and food from them,
and counseled her not to repeat the same faithlessness. His wife,
promised him not to do the act again. Thereafter — the accused
continued testifying — he left the house and went towards the
South to see his carabaos. Upon returning to his house at above
five o'clock in the afternoon, and not finding his wife there, he
looked for her and found her with Isabelo near the toilet of his
house in a place covered with underbush, who was standing and
buttoning his drawers, immediately took to his heels. The accused
went after him, but unable to overtake him, he returned to where
his wife was and, completely obfuscated, attacked her with a
knife without intending to kill her. Thereafter, he took pity on
her and took her dead body to his house.
that she had carnal intercourse with Isabelo, he was entitled to
the privilege afforded by article 247 of the Revised Penal code
providing: "Any legally married person who, having surprised his
spouse in the act of committing sexual intercourse with another
person, shall kill either of them or both of them in the act or
immediately thereafter, or shall inflict upon them any serious
physical injury, shall suffer the penalty of destierro. (Emphasis
ours.)
We do not believe that the accused can avail himself of the
aforesaid article, because the privilege there granted is
conditioned on the requirement that the spouse surprise the
husband or the wife in the act of committing sexual intercourse
with another person; the accused did not surprise his wife in the
very act or carnal intercourse, but after the act, if any such there
was, because from the fact that she was rising up and the man was
buttoning his drawers, it does not necessarily follow that a man
and a woman had committed the carnal act.
We cannot, therefore, entirely accept the defense sought to be
established by the accused, first, because his testimony is
improbable. It is not conceivable that the accused had only mildly
counseled his wife not to repeat committing adultery with Isabelo,
instead of taking harsher measures as is natural in such
circumstances, if the were true that he had surprised the two
offender in the act of adultery on returning to his house at midday
on the date in question. Neither is it likely that a woman thirty
years of age, like Sixta Quilason, and twenty-five-year old Isabelo
Evangelio, both of sound judgment as is to be supposed, had dared
to have carnal intercourse near the toilet of the offended party
house, a place which is naturally frequented by some persons. The
circumstance that the place was covered by weeds, does not
authorize the conclusion that the offenders could lay concealed
under the weeds because the latter do not usually grow to such
height as to conceal or cover two persons committing the guilt act.
It seems that under the circumstances it is unnatural that they
would execute the act in a place uncovered and open. We do not
want to suppose that the sexual passion of two persons would
border on madness. Secondly, because even assuming that the
accused caught his wife rising up and Isabelo cannot invoke the
privilege of article 247 of the Revised Penal Code, because he did
not surprise the supposed offenders in the very act of committing
adultery, but thereafter, if the respective positions of the woman
and the man were sufficient to warrant the conclusion that they
had committed the carnal act. (3 Viada, Penal Code, p. 96; People
vs. Marquez, 53 Phil., 260).
Taking into account the mitigating circumstances of lack of
intention on the part of the accused to commit so grave a wrong as
that committed upon the person of the deceased, and of his lack of
instruction, the appealed judgment is modified, and the accused is
sentenced to the penalty of twelve years and one day to twenty
years of reclusion temporal and indemnify the heirs of the
deceased in the amount of P1,000 with the costs. So ordered.
Villa-Real and Diaz, JJ., concur.
Separate Opinions
AVANCEÑA, C. J., concurring:
I agree with the majority decision as to the result. I do not believe
the testimony of the accused, the only evidence in his defense, that
at noon of that day he found his wife in his house having carnal
intercourse with Isabelo Evangelio, and that in the afternoon,
some hours thereafter, he saw them in the underbush near the
toilet, Isabelo buttoning his drawers and his wife rising up from
the ground. Isabelo denied these facts. The accused, immediately
after his wifes death, told his sister-in-law and the barrio
lieutenant that she had committed suicide. Subsequently, in the
justice of the peace court, he pointed to Isabelo as the killer of his
wife.
MORAN, J., concurring:
I concur in the dispositive part.
The husband has no right to take the life of his wife. He has no
right to do so even on the ground of conjugal infidelity. The law
does not punish such infidelity by death. Much less, therefore, can
the husband punish it by that penalty. The law nevertheless
establishes one exception, whereby it justifies, the husband if the
latter kills his wife upon surprising her "in the act of committing
sexual intercourse with another person." (Article 247 Revised
Penal Code.) It is because the law, in such case, considers the
husband as acting in a justified burst of passion. But to avail
himself of the exception, the bounds, that is, that he has surprised
his wife in the carnal act with another, or under circumstances
which unmistakably evidence the execution of the carnal act.
I agree that for a husband to be justified, it is not necessary that he
sees the carnal act being committed by his wife with his own eyes.
It is enough that he surprises them under such circumstances as to
show reasonable that the carnal act is being committed or has just
been committed. Thus, for instance, if the offended husband, as in
the case of U.S. vs. Alano, 32 Phil., 381, had seen the supposed
adulterer on top of his wife, there would be sufficient ground to
justify him, although he had not seen the copulation with his own
eyes. If the husband surprises his wife with another in scant in a
hotel room and kills her, there would also sufficient ground to
justify him. (See U.S. vs. Feliciano, 36 Phil., 753.)
In the present case, the acts attributed to the deceased and Isabelo
Evangelio do not conclusively show that they had committed
adultery in the underbush. From the fact that, in an open filed, she
was rising up and pulling down her skirt while he was buttoning
his drawers nearby, it does not necessarily follow that they had
carnal intercourse. It does not appear in what position she was
found before she rose up, or how she stood up and pulled down
her shirt. She could have been in an ordinary sitting position
before rising up and, to avoid raising her skirt, she held it down
when she stood up. And as to him, the fact that he was buttoning
his drawers only means that they were unbuttoned, but anyone
may be in such circumstance without having carnal intercourse
with any woman. It may be that the woman, in the afternoon in
question, was sitting near the toilet of her house, and that while in
this position, Isabelo Evangelio, who answered the call of nature
in another place, approached her buttoning is entirely consistent
with the presumption of innocence in favor of both.
It is true, at non time, the deceased and Isabelo Evangelio
committed adultery in the conjugal house of the offended
husband. But this is no evidence that they committed adultery in
the afternoon of the same day. An accused cannot be found guilty
of one crime just because he committed the same crime before. One
of the rules covered by the principle res inter alios acta is to the
rules covered is to the effect that "evidence that one did or
committed to do a certain thing at one time is not admissible to
prove that he did or committed to do the same or a similar thing at
another time." (Elliott on Evidence, p. 216.) The adultery
committed at noon time only makes the acts executed by the
deceased and Isabelo Evangelio in the shrubbery highly suspicious.
But mere suspicions do not justify a husband in killing his wife.
IMPERIAL, J., dissenting:
At noon time on June 2, 1938, the appellant, on returning to his
conjugal house from the woods where he had been working,
surprised his wife Sixta Quilason, the deceased, and her paramour,
Isabelo Evangelio, in the act of adultery. Upon seeing him,
Evangelio escaped through the door of the house. The appellant
approached his wife and merely scolded her for the act she had
committed, making her understand that she would not get
anything from continuing her illicit relations with Evangelio
because the latter was without means of livelihood and used to ask
rice and food from them. The deceased promised the appellant not
to fail him again. After resting for a while, the appellant again left
the house towards the South to see and look after his carabaos. At
five not finding his wife therein, looked for her in the
neighborhood, finding her again with Isabelo Evangelio. On this
occasion he found his wife raising herself up in a shrubbery near
her buttoning his drawers. The latter took to his heels upon
noticing the presence of the appellant. The latter gave chase, but as
he was unable to overtake Evangelio, he returned to where his
wife was and in a fit of passion attacked and killed her with his
knife, thereafter taking her dead body home.
Upon the facts above set out, the majority decision finds the
appellants guilty of parricide, and considering in his favor the
mitigating circumstances of lack of intention to cause so grave a
wrong as that committed and of his lack of instruction, sentences
him to the indeterminated penalty of twelve years and one day to
twenty years ofreclusion temporal, to indemnify the heirs of the
deceased in the amount of P1,000, and to pay the costs. The
majority decision denies to the appellant the benefit afforded by
article 247 of the Revised Penal Code to this effect:
ART. 247. Death or physical injuries inflicted under
exceptional circumstances. — Any legally married person
who having surprised his spouse in the cat of committing
sexual intercourse with another person, shall kill either of
them or both of them in the cat or immediately thereafter,
or shall inflict upon them any serious physical injury,
shall suffer the penalty of destierro.
If he shall inflict upon them physical injuries of any other
kind, he shall be exempt from punishmentlâwphi1.nêt
These rules shall be applicable, under the same
circumstances, to parents with respect to their daughters
under eight years of age, and their seducers, while the
daughters are living with their parents.
Any person who shall promote or facilitate the
prostitution of his wife or daughter, or shall otherwise
have consented to the infidelity of the other persons shall
not be entitled to the benefits of this article.
In my opinion the proven facts bring the appellant within the
purview of article 247 and make him deserving of the benefit
therein provided. The legal provision should not be interpreted so
literally and strictly as is done in the majority decision. The latter
declines to give the benefit because it finds that the appellant did
not surprise his wife and her paramour in adultery or in the very
act of committing it. It seems to me that the privilege or benefit
extends not only to the cat of adultery, but also to any plain and
positive facts which lead to no other reasonable conclusion than
that which lead to no other reasonable conclusion than that the
adultery has been committed. If the legal provision should be
interpreted literally and narrowly, a s has been done, then it
would likewise not be an act of adultery if a husband surprises his
wife under another man, both of them being naked, while the
offended husband has not seen the consummation of the carnal
act. Thus viewed, the result is a departure from the intention and
purpose of the legal provision. Taking into account the position of
the deceased and her paramour, what they were doing with their
clothes, and the solitary place covered with underbush, there
could be no other conviction than that they had just committed
the carnal act, which is what warrants the imposition of a lighter
penalty under article 247.
The deduction made that the guilty parties could not have
executed the carnal act in that place finds no support in the reality
of the facts or in the lessons of experience gained through a
reading of the judicial annals. Adultery is not always committed in
a ready and luxurious room, or in a comfortable bed embellished
with carvings.
The appellant, in my opinion, should be sentenced only to two
years, four months and one day of destierro, in the manner
provided by the Revised Penal Code, with costs..
LAUREL, J., dissenting:
I am unable to agree with the decision of the majority of my
brethren in this case and I find it my duty to express my dissent.
I am of the opinion that the benefit of article 247 of the Revised
Penal Code should be extended to the appellant who should
accordingly be sentenced to suffer the punishment of destierro in
the manner prescribed by law. It is true that this article of the
Code is limited in its application to cases where the offended
spouse surprises the other "in the act of committing sexual
intercourse," but considering the purpose which the legislator
must have had in mind in extending the extraordinary or special
attenuating circumstance to the offended spouse, this requirement
should not invariably be given a literal interpretation, but each
case should be subjected to the rigid judicial scrutiny to prevent
abuse but not to frustrate the legislative rationale. To require
performance of carnal act before the offended spouse raise the
chastising hands is to require the impossible in the majority of my
breathen, if a married woman at the appointed hour, in response
to a common purpose, should meet her paramour at a designated
place, both to enter a room alone, then and thereafter to undress
themselves, perform actual acts of the character of abusos
deshonestos, all in preludis to the carnal act, the offended husband
must look on in the mean time and wait until the very physical act
of coition takes place, if he were to receive the benefit of the
special attenuation provided in section 247 of the Revised Penal
Code. This interpretation is far from being rational and certainly
does violence to the reason and purpose of the law. The
circumstances are not for mature reflection of for husband to
engage in mathematical calculation. Precision was not
contemplated by the legislator and could not have been. When, as
expressed in the Explosicion de Motivos del Proyecto de la
Comision de Codifiaction, amendatory to the Spanish penal Code
of 1870, the offended spouse "en un triste momento vea
desmoronarse la felicidad de su hogar y obre a impulsos de
verdadero y sincero dolor", watchful waiting cannot be the rule.
To receive the benefit of section 247 of the Revised Penal Code it is
not necessary that the act be in ipsis rebus venereis, but it is
sufficient that—borrowing the expression of the Romanists—it
be in preludiis vel paulo post, provided that it is the lanuguage of
Pessina (Elementi, 2.º p. 57) "el acto no pueda explicarse mas que
como efecto del lazo criminoso del adulterio" or in the language of
Groizard (Vol. 4, p. 673) "los complices se encuentren en situacion
y condiciones de los que DIRECTAMENTE se infiere que con aquel
proposito se han reunido". (Capitalizing and unitalicizing are
mine.) Upon the facts of the present case, it is uncontradicted that
the wife and her paramour were surprised near the toilet of the
house of the couple, amids growing shrubs, late in the afternoon
while "la mujer estaba abrochando sus pantalones" (s. n., pp. 25,
27) and they were hardly one foot apart from each other. Added to
this paramour was a prequent visitor of the house (s.n., p. 26), the
fact that a noon of the same day, June 2, 1938, both were surprised
"uno encima de la otra" (s.n., p. 23), and the further fact that the
husband had no other motive — at least nothing was proved or
shown, on the contrary they lived happily for fifteen years — for
killings his wife, and the only conclusion is — unless we wish to
live in blissful ignorance of the frailties of human nature — that
the deceased Sixta Quilason and her paramour Isabelo Evangelio
met at the place for one single and clear purpose, to commit
adultery, and that they committed it. Taking into consideration
the acts of the parties, their behavior and appearances, the
surrounding circumstances, the entire res gestae, it is clear to a
rational mind that they had committed the adulterios act. It is not
necessary that the husband should be actual and living witness to
the act of copulation to entitle him to the benefits of article 247 of
the Revised Penal Code.
The laws of Solon, the Roman Law, the laws among the Goths and
other ancient laws — not excluding our own native laws, view the
infidelity of the wife with severity; and there are modern codes
which justify the killing of the wife and her paramour who are
caught in the act adultery, such as the penal codes of Chile, Colobia
and Ecuador. In Argentina and Switzerland the same result is
reached by judicial determination, because the crime is deemed
committed in a state of mental desequilibrium. The theory of
exemption based on physical considerations has not been accepted
in the Anglo-American countries nor in the majority of the Latin
countries of Europe. Like the penal codes of Portugal, Italy, France
and Belgium, our Revised Penal Code considers the crime as a
special one, because of the extraordinary concurrent
circumstances of attenuation such as uncontrollable passion,
absence of criminal malice, and physical emotions. But whatever
may be the case, fundamentally and rationally, the codes and laws
of all countries express the same sentiment: the condemnation of
the iniquity at demolition of the fundamental unit of social order
and the destruction of the felicity of family and home. The
responsibility of the offended husband has been of varying
degrees. Not to speak of the influence of Christianity upon the
institution of marriage, the same development is observable in the
field of criminal legislation in the Spanish peninsula from the
Fuero Juzgo, through the Fuero Real, Las Siete Partidas, the Penal
Codes of 1822, 1848, 1850 and 1870 down to the Spanish Penal
Code of September 8, 1928.
In our case, I observe that the Spanish Penal Codes of 1848 (art.
339) and 1850 (art. 348) and 1870 (art. 438) require for purposes
of special attenuation that the husband surprise en adulterio a su
mujer and that the Spanish Penal Code of 1870 as reformed by
the Comision Codificadora de las Provincias de Ultramar which
was in force at the time of the revision of our penal laws in 1930
also borrowed the same language which remained until the
enactment of Act No. 3195 of the Philippine Legislature. Perusal of
this Act will reveal that the changes consisted in extending the
benefit of the original article 423 of the Penal Code the both
husband and wife, and for this reason, the phrase "in the act of
adultery" was changed to "in the act of committing sexual
intercourse", and the clause "shall kill . . . in the act" was changed
to "shall kill . . . in the act or immediately thereafter," so that the
law now as embodied in section 247 of the Revised Penal Code is as
follows:
Death of physical injuries inflicted under exceptional
circumstances. — Any legally married person who, having
surprised his spoused in the act of committing sexual
intercourse with another person, shall kill any of them or
both of them in the act or immediately thereafter, or shall
inflict upon them any serious physical injury, shall suffer
the penalty of destierro.
If he shall inflict upon them physical injuries of any other
kind, he shall be exempt for punishment.
These rules shall be applicable, under the same
circumstances, to parents with respect to their daughters
under eighteeen years of age, and their seducers, while the
daughters are living with their parents.
Any person who shall promote of facilitate the
prostitution of his wife or daughter, or shall otherwise
have consented to the infidelity of the other spouse shall
not be entitled to the benefits of this article.
In United States vs. Alano the offended husband was charged with
the crime of homicide and sentenced by the lower court to the
penalty of fourteen years, eight months and one day of cadena
temporal, to the accessory penalties, and to pay the costs. The facts
in that case, as related in the decision of this court acquitting the
offended husband on appeal, are as follows:
"About 5 o'clock in the afternoon of July 27, 1914, Modesta
Carballo, a friend and comadre of Teresa Marcelo, who had a store
near a cinematograph on Calle Tennessee of the district of Malate,
went to Teresa's house on the same street to make her a present of
five tickets for admission to the said cinematograph. When Maria
Remigio, her husband F. R. Cleach, and Maria's sister, Antonina
Remigio, returned home and learned to the present, they got ready
to go the cinematograph; but Tomas Ramos and his wife, Ricarda
Garces, who also both lived in that house, did not do so, because
the former was in a billiard hall at the time, and the latter was
lying sick in a room of the house. In obedience to the suggestion of
her husband, the defendant Teresa Marcelo did not accompany the
party to the cinematograph, as one of her children was sick, but
still a little while afterwards Modesta Carballo approached the
house where the defendant was, to call Teresa, who then told
Modesta that she would not go to the cinematograph, for the
reason mentioned. Thereupon the defendant Eufrasio Alano and
his wife Teresa Marcelo amused themselves at the card game of
"black jack." About half past seven that evening the defendant,
feeling tired, went to bed, while his wife remained at the window
looking out and a little while afterward told her husband that she
would go down for a moment to the Chinese store near by, which
she did.
As Teresa Marcelo was slow in returning and her sick child
was crying, Eufrasio Alano left the house to look for her in
the Chinese store situated on the corner of Calles Dakota
and Tennessee, and, finding her there, went to look for her
in another Chinese store near by, with the same result. He
therefore started to return home through an alley where
he tripped on a wire lying across the way. He then
observed as he stopped that among some grass near a
clump of thick bamboo a man was lying upon a woman in a
position to hold sexual intercourse with her, but they both
hurriedly arose from the ground, startled by the noise
made by the defendant in stumbling. Alano at once
recognized the woman as his wife, for whom he was
looking, and the man as Martin Gonzales who immediately
started to run. He was wearing an undershirt and a pair of
drawers, which lower garment he held and pulled up as he
ran. Enraged by what he had seen, the defendant drew a
franknife he had in his pocket and pursued Martin
Gonzales. although he did not succeed in overtaking him,
and, not knowing where he had fled, returned to the
house, where he found his wife Teresa in the act climbing
the stairs. He then reprimanded her for her disgraceful
conduct and immediately stabbed her several times,
although she finally succeeded in entering the house,
pursued by her husband and fell face downwards on the
floor near the place where the sick woman Ricarda Garces
was lying. The latter on seeing this occurrence, began to
scream and started to run, as did also Teresa Marcelo who
had arisen and gone down the stairs out of the house; but
her infuriated husband again assaulted her and when she
reached the ground she fell on one of the posts beside the
stairs. When the defendant saw her fall, he entered the
house, took some clothes and started out in the direction
of the Fort McKinley.
There are three salient points in the Alonso case to which I direct
particular attention in support of the view that I entertain and in
refutation of the argument of the majority in the case at bar. (1) in
the Alano case the "man was lying upon a woman in a position to
hold sexual intercourse with her . . . near a clump of thick bamboo
. . . but they both hurriedly arose from the ground, stated by the
noise made by the defendant in stumbling." The parties there were
not surprised in the act of copulation but merely "in a position to
hold sexual intercourse." Indeed, the act of the man placing
himself upon a woman is not necessarily the act of coition itself,
but is a mere preliminary to the act. There, this court did not give
a literal interpretation to the legal provision involved. (2) In the
Alano case it should be observed that the act of adultery occurred
in the neighborhood of Calles Dakota and Tennessee, in the district
of Malate, in the City of Manila, whereas the case at bar occurred
no less than in one of the remote barrios of the municipality of
Sariaya, Province of Tayabas. The majority in the case at bar finds
it incredible that the act of adultery could have been perpetuated
under the circumstances testified to by the defendant, and says:
Como tampoco es verosimil que una mujer, como Sixta
Quilason, de unos de 30 años de edad, e Isabelo Evangelio,
de unos 25 anos de edad, ambos de discrecion suficiente,
como es de suponer, se hayan atrevido a tener un
syuntanientocarnal, nada menos que cerca del retrete de la
case del ofendido, que es de suponer, es un lugar
frecuentado por algunas personas. La circunstancia de que
el sitio estaba cubierto de malezas, no autoriza la
conclusion de que los culpables podrian estar cubiertos por
las malezas, porque las malezas no suelen tener mucha
altura para ocultar o cubrir a dos personas que esten en
posicion deshonesta. Parece que entales casos, no es lo
natural que ejecuten elacto en un sitio descubierto a
visible. No queremos suponerque pueda rayar en locura el
impetu pasional de dos personas.
The occurrence in the Alano in the Alano case is not very different
from that of the case at bar. If in the former case it did take place
— as found by this court — in plain Malate, City of Manila, why
could it not have taken place in a sparely populated barrio of
Sariaya, Tayabas? The fact that Sixta Quilason was thirty years of
age and her paramour Isabelo Evangelio was but twenty-five
years, does not prove what the majority calls "discrecion
suficiente" but rather the youth of the actors and everything that
youth implies. (3)In the Alano case the offending wife was killed
not in the place where she was surprised with her paramour but
in the conjugal home after she had fled, pursued by her husband;
whereas, in the present case, the deceased Sixta Quilason was
killed on the very spot where she was found with her paramour
Isabelo Evangelio.

The majority does not give credit to the testimony of the accused
in the present case. I do. I accept his testimony because ( a) it is not
contradicted or disproved in its material details by the
prosecution, (b) I find nothing inherently improbable or
incredible in that testimony, (c) it was given under the solemnity
of oath at a formal trial, and (d) it is substantially a reiteration of
his sworn statement (Exhibit G — June 3, 1938) and (s) the alleged
report (Exhibit F) concerning the suicide appears to have been
made by the lieutenant of barrio of Concepcion-Banahaw of that
municipality.

In view of the result reached by the majority in this case, I also

express the opinion that this is matter that may properly be
brought to the attention of His excellency, the President of the
Philippines, for such action as he may deem proper to take in the
premises.